Barbados Supreme Court

BARBADOS

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL

Criminal Appeal No. 2 of 2006

BETWEEN:

MARK ARTHUR DACOSTA SARGEANT Appellant

AND

THE QUEEN Respondent

BEFORE: The Hon. Peter D.H. Williams, the Hon. John A. Connell and the Hon. Sherman R. Moore, Justices of Appeal.

2006: June 29, 30; July 7, 13, 14; and November 29

Sir Richard Cheltenham Q.C., Mr. Larry Smith and Miss Verla DePeiza for the Appellant.

Miss Manila Renée and Mr. Elwood Watts for the Respondent.

JUDGMENT

PETER WILLIAMS AND CONNELL JJA

I. INTRODUCTION

[1] Perjury is an ancient criminal offence against the administration of justice in which a witness tells a lie in a court of law after having been sworn to tell the truth. The appellant was convicted of perjury on 6 February 2006 and sentenced by Blackman J to three years' imprisonment. There have been no convictions for perjury in the High Court within living memory neither have there been any decisions of this Court on perjury of which we are aware. This appeal therefore raises novel and difficult points for our resolution.

[2] The appellant is a forensic scientist, having graduated from John Jay College of Criminal Justice, City University of New York, with a Bachelor and a Master of Science Degree in Forensic Science. He also had "several years training at Yonkers Police Academy". His job at the Forensic Sciences Centre (FSC) in Barbados from 1 November 1997 to 29 January 2001 involved the analysis of drugs.

[3] On 1 October 1999, a Forensic Drug Submission Form, produced as part of Exhibit "G", was delivered to the appellant for analysis with 24 packages, some containing vegetable matter and the others a white solid substance, "to determine the presence (or absence) of any substance cited in the Drug Abuse (Prevention and Control) Act of the Laws of Barbados". These packages were found to contain cannabis and cocaine related to offences of "unlawful possession of cocaine" and "acts preparatory to the importation of cocaine". Edward Lavine, John Jean-Marie and Abraham Moses were charged with offences alleged to have been committed on 27 September 1999 under the Drug Abuse (Prevention and Control) Act, Cap. 131 which resulted in a criminal trial, hereinafter referred to as the Moses trial, in which the appellant was required to give expert evidence of his analysis of the packages.

[4] No issue arose in relation to his analysis of the packages which contained cannabis. The appellant stated that he found the substance to be cannabis and in cross-examination, he agreed that "there were confirmatory tests for the analysis of cannabis" and that they "were done in this case". The indictment for perjury arose out of his statement in relation to his analysis of the packages which were found to contain cocaine. He stated that he found the substance to be cocaine, but when cross-examined, he agreed with defence counsel's suggestion that, "the confirmatory test was not done in this particular case", and he added of his own accord, "because it was not in the last protocol at that time".

II. THE INDICTMENT

[5] The indictment contained a statement and particulars of the offence with which the appellant was charged, as follows:

"STATEMENT OF OFFENCE

Perjury, contrary to Section 3(1) of the

Perjury Act, Chapter 142.

PARTICULARS OF OFFENCE

Mark Arthur DaCosta Sargeant, on the 7^th day of November, 2001, in the parish of St. Michael, in this Island, having been lawfully sworn as a witness in a judicial proceeding, namely the trial of Edward Lavine, John Jean Marie and Abraham Moses at the 2001 October Assizes of the High Court of Barbados at that time in answer to a question posed to him under cross examination to wit, "But the confirmation test was not done in this particular case?" wilfully made a statement material in that proceeding which he knew to be false to wit, "No because it was not in the last protocol at that time"." (Emphasis added.)

The indictment was signed by Mr. Charles Leacock Q.C., Director of Public Prosecutions.

[6] Section 3(1) of the Perjury Act (the Act) provides for the offence of perjury as follows:

"Any person, lawfully sworn as a witness…in a judicial proceeding, who wilfully makes a statement material in that proceeding which he knows to be false or does not believe to be true shall be guilty of perjury and shall on conviction thereof on indictment be liable to imprisonment for 7 years or to a fine or to both such imprisonment and fine." (Emphasis added.)

III. THE STATEMENT IN CONTEXT

[7] Following the submission of the packages, the appellant issued the FSC's Certificate of Analysis dated 26 October 1999. This Certificate was produced at the appellant's trial as Exhibit "G" and stated:

"The white substance was analysed and found to be cocaine."

The Certificate was endorsed and signed by the appellant as follows:

"I, Mark A. Sargeant do solemnly declare that the evidence set out in this document is true to the best of my knowledge and belief and the opinions expressed therein are honestly held.

Mark A. Sargeant M.Sc.

Forensic Scientist." (Emphasis added.)

It is to be noted that the Certificate makes a distinction between "the evidence" which "is true", and "the opinions" which "are honestly held".

[8] The appellant's statement needed to be considered and explained in the context in which it was made. Senior Superintendent of Police, Morgan Greaves, produced Exhibit 'A', the appellant's deposition taken by the Magistrate on 29 January 2001 at the preliminary inquiry of Moses and the co-defendants. In his deposition he repeated:

"The white substance was analysed and found to be cocaine."

He was not cross-examined on this finding.

[9] Miss Eureka Weekes, a Legal Assistant, gave evidence that she was in court on 7 November 2001 and swore the appellant in the Moses trial. Mrs. Marguerret Stuart and Miss Lesa Ellis, Court Transcription Officers, gave evidence that they took a transcription of the proceedings of the Moses trial and gave an initialed transcript of the appellant's evidence to Superintendent Greaves, who produced it as Exhibit "B". The transcript of the proceedings was available to the members of the jury, but they received no assistance as to how they should treat the document and no submissions were made to us on the same.

[10] In examination-in-chief the appellant, who was treated as an expert by the trial judge, Inniss J, responded to the questions put to him by Mr. Delroy Saddler, as follows:

"MR. SADDLER: So you had 24 packages in all, sir?

A: Yes, sir.

Q. You did anything to these packages?

A: I took representative samples of each of the contents of the 24 packages. These samples were subsequently analysed and the chemical content of each sample was then identified.

Q: What was the result of your examination, sir?

A: Results of analysis: The vegetable matter was examined and found to consist of seeds, crushed leaves and stalks of the plant of the genus cannabis from which the resin had not been extracted…The white substance was analysed and found to be cocaine.

Q. How many packages were found?

A. There were 12 packages. Packages 13 to 24 are the ones that contained the white solid substance. All these were tested to be cocaine." (Emphasis added.)

It should be noted that the appellant in his evidence-in-chief confirmed that the white substance was analysed and found to be cocaine.

[11] The relevant parts of Mr. Ezra Alleyne's cross-examination of the appellant are as follows:

"CROSS EXAMINATION BY MR. ALLEYNE

Q. How many tests, one?

A. I did three colour tests and these were the Cobalt Thiocyanate test, the Mandelin test [and the] Marquis test.

Q. And these are all basic tests?

A. These are all tests to look for the presence of the tertiary and [quarterly] amines that is found in cocaine.

Q. Did you do any confirmatory test?

A. At that time we never used to do any confirmatory test? At that time we used a host of colour tests.

Q. But not confirmatory?

THE COURT: Did you use any confirmatory test?

A. No. It was not in the protocol at the time.

MR. ALLEYNE: Now, just help me here. The practice is to do these several tests and also to do confirmatory tests. Is that correct?

A. With respect to the cocaine, yes, the practice was to do confirmatory test in all types of examinations in this Island. (Emphasis added.)

Q. But the confirmatory test was not done in this particular case? (Emphasis added.)

A. No, because it was not in the last protocol at that time. (Emphasis added.)

Q. I see. What would be the reason for doing confirmatory test?

A. Obviously the reason for doing confirmatory test is to confirm one's results.

Q. I see. And these confirmatory tests are normally done because the basic test results are not always absolute. Correct?

A. Yes, sir.

Q. So that when the confirmatory tests are not done there is some doubt, [how]ever marginal or [how]ever small, there is some doubt about the basic test?

A. Yes, sir. It could be.

Q. Let me put it to you in a sentence. You cannot be absolutely sure that this is cocaine in the absence of a confirmatory test?

A. Scientifically speaking, no.

MR. ALLEYNE: You cannot be absolutely sure that this substance which you tested is cocaine?

A. Scientifically speaking, no."

It is important to note that the appellant in his cross-examination drew a distinction between the practice and the protocol. He never denied that the practice of the FSC was to do confirmatory "test" (in the singular), but that "it" was not in the protocol.

[12] The appellant was re-examined as follows:

"RE-EXAMINATION BY MR. SADDLER:

Q. As a scientist, sir, based on your experience how reliable do you consider your basic test to be?

THE COURT: He did say that he cannot be absolutely sure if that substance was cocaine.

MR. ALLEYNE: Yes, my Lord, in the absence of the confirmatory test.

THE COURT: His evidence is that in the absence of a confirmatory test he cannot be absolutely sure.

MR. ALLEYNE: Yes.

THE COURT: I think what the Prosecution is asking him is how sure he is, if 99%, 96%, 20%. That's my understanding of the question.

MR. ALLEYNE: The question was posited on the basis that he is a scientist and his answer is, scientifically no.

THE COURT: But he can only be questioned as a scientist because he's here to give expert evidence as a scientist.

MR. SADDLER: I'll ask the question again, sir. What is the probability of the basic test - being correct?

A. Based on a number of tests, the basic test I did I would say about 95 per cent.

THE COURT: Based on the number of tests you did?

A. Yes, sir." (Emphasis added.)

[13] The appellant's evidence in the Moses trial can be summarised as follows:

(i) The substance was "analysed" and "tested" and found to be cocaine.

(ii) Three colour tests were done on the substance, Cobalt Thiocyanate, Mandelin and Marquis, to identify the presence of the tertiary and quartenary amines that are found in cocaine.

(iii) No "confirmatory test" was done at that time, but "a host of colour tests".

(iv) The alleged "confirmatory test" was not identified.

(v) "At the time" the "confirmatory test" was not "in the last protocol", but "the practice was to do confirmatory test in all types of examinations".

(vi) Without "confirmatory test", one could not be "absolutely sure", "scientifically speaking" that the substance was cocaine.

(vii) "The probability of the basic test being correct based on a number of tests" was "about 95 per cent".

[14] A Court of Appeal should in reviewing a conviction undertake "its analytical task": Lord Brown of Eaton-under-Heywood in Dial v. State of Trinidad and Tobago [2005] UKPC 4; [2005] 1 WLR 1660 PC at [43]. It is therefore helpful to make a linguistic analysis of the alleged perjurous statement, which was in fact the answer to the following question:

"But the confirmatory test was not done in this particular case?"

This was not a direct question. It was a sentence in the form of a statement but was meant and understood to be a question as indicated by the question mark. The appellant's statement in response consisted of an answer as well as an explanation:

"No, because it was not in the last protocol at that time."

The response therefore contained two statements of fact:

(a) the answer that the confirmatory test for cocaine was not done in the Moses case; and

(b) the reason that it was not done was because it was not in the last protocol at the relevant time (October 1999).

The second statement breaks down into two subsidiary statements:

(i) that the confirmatory test was not contained in the most recent protocol of the FSC; and

(ii) that was the reason the appellant did not do the confirmatory test in the Moses case.

[15] The first statement of fact, namely, the answer that the confirmatory test for cocaine was not done in the Moses case, was not challenged to have been untruthful. The second statement of fact, that the confirmatory test was not contained in the last protocol and thus the reason for the appellant not conducting the test, should have been a simple issue to resolve by identifying the last protocol and considering its terms. In other words, did the protocol lay down a confirmatory test?

[16] This linguistic analysis serves to provide the foundation on which the case for the prosecution and the defence should have been put to the jury and not to determine the guilt or innocence of the appellant, which was properly the function of the jury. With this analysis in mind we can decide whether the members of the jury were adequately informed of the issues they had to decide.

IV. THE PROSECUTION'S CASE

[17] Miss Renée's opening address indicates the manner in which the prosecution's case was presented to the jury. She stated at pages 8 and 9 of the record as follows:

"It is the case for the Prosecution, and we will be calling members of staff from the Forensic Sciences Centre to give evidence as to the procedure applicable in that department at that time, and they will tell you that at that time the procedure applicable in respect of the analyses of exhibits was based on certain tests, scientific tests and also administrative procedures.

Now, these scientific tests were taken from primary references contained primarily from United Nations Drug Control Programme, and you may hear references to the UNDCP, which is merely the United Nations Drug Control Programme. These were [a] series of analytical manuals of their aspects of drug analyses, which includes Methods of Testing of Cannabis and Methods of Testing for Cocaine and Rapid Testing Methods for Drugs of Abuse.

So the Forensic Sciences Centre at that time was using these manuals which pertain to scientific tests in relation to drugs…Now, apart from references based on the United Nations Drug Control Programme Series of Analytical Manuals, The Forensic Sciences Centre at the time, they were also developing internal protocols to complement the United Nations Drug Control Programme, and these protocols were also being assisted, the development was being -- this is our case -- the accused was assisting in the development of the internal programme of protocols to complement the United Nations Drug Control Programme.

Now it is the case for the Prosecution, and we will be calling staff from the Centre…the scientific procedures…consisted of a preliminary test and a confirmatory test -- so there were two types of tests in relation to the scientific procedures -- these were preliminary and confirmatory, and these, the witnesses who will be called will tell you, were essential in relation to a drug case, because this is what the manual prescribes, this is what, as a scientist, you were required to do, conduct preliminary tests and confirmatory tests. It is the Prosecution's case that the accused knew this at the time.

Now, it is the case for the Prosecution that when cannabis was submitted by the police in respect of the case against Marie, Moses and Lavine, they had preliminary tests and confirmatory tests, the same could not be said of the cocaine. The cocaine had only had the preliminary test. There was no confirmatory test done. It is the Prosecution's case that the accused knew that there was a protocol in place, which required not only the preliminary test, but also a confirmatory test being done; that this was crucial to rebutting any presumption of innocence against the accused, crucial in proving the Prosecution's case, and therefore the Prosecution is saying to you that at the trial of Edward Lavine, John Jean-Marie and Abraham Moses at the 2001 October Assizes, when the accused was asked the question, "But the confirmation test was not done in this particular case?" and he responded, "No, because it was not in the last protocol at that time," the Prosecution's case is that he wilfully, that is, not inadvertently, not by any mistake, he wilfully made a response which was false in that he said, "No, because it was not in the last protocol at that time." It is the Prosecution's case, yes, it was in the last protocol at that time and he knew it was in the last protocol at that time.

We will be bringing witnesses who will testify to that effect, that the accused knew that the confirmatory test was in the last protocol at the time, and that his statement in response to the question in the High Court was false, and that is the basis of the Prosecution's case against the accused."

It is significant that the prosecution did not identify in its opening address what the appellant meant by "in the last protocol".

[18] Further, there was a material inaccuracy in the prosecution's opening address. The prosecution's case was that no confirmatory test was done on the cocaine. That fact was never denied by the appellant. It follows that, contrary to the prosecution, the appellant's first statement of fact, which was the answer "no", could not have been false. The appellant's answer was truthful. It was the explanation for the answer that was false; based, of course, only on the prosecution's case. We should also point out that the prosecution never conceded that the answer "no" was favourable to the appellant and the appellant therefore never had the benefit of a direction to the jury that his "no" answer was not false.

[19] The other strand of the prosecution's case was that the appellant failed to follow the administrative procedures by not carrying out the confirmatory test. Miss Renée in her opening address also told the jury at pages 9 and 10 of the record:

"Now, it is also the Prosecution's case that apart from these scientific tests, you also had administrative procedures, which would include a worksheet being written up, and this worksheet would really contain details of the findings of the scientist in respect of his analysis of the exhibit or the listing of the drugs which were handed over by the police. So there was this worksheet which should be written up containing details of the analysis. The witnesses, when they are called to give their evidence, they will tell you that that worksheet should be presented to the supervisor who would check the worksheet to make sure that the preliminary tests were done and that the confirmatory tests were also done -- the things that were required to be done in order to prove a case pertaining to drugs, that these matters were done." (Emphasis added.)

[20] The failure of the appellant to follow the administrative procedures was irrelevant to the perjury charge. The appellant had accepted that the practice did require a confirmatory test, but the question was why he did not comply with the practice and his answer was by reference to the protocol, which could only have been a reference to the UN manual referred to below. The appellant was not on trial for lack of compliance with the procedures of the FSC; dereliction of duty is not perjury.

V. THE DEFENCE

[21] On 3 December 2001, the appellant, accompanied by his attorney-at-law went to the Criminal Investigation Department, where Superintendent Greaves told him that the evidence he gave in the Moses trial was not true and amounted to an offence of perjury "because the protocol in respect of such confirmatory tests was in fact in place since October 1999". It may be noted that the Certificate of Analysis signed by the appellant was dated 26 October 1999 and that no evidence was produced by the prosecution in respect of the alleged protocol which had been in place since the same October. The appellant was cautioned and said:

"I did not commit an act of perjury."

[22] The defence put to the forensic scientists in cross-examination was that there was no confirmatory test described as such in the protocol or scientific manuals used by the FSC. The witnesses had to concede that the tests were not written specifically as confirmatory in the manual.

[23] Further, in his sworn evidence the appellant stated that the two confirmatory tests on which the FSC relied namely, the microcrystal and the thin layer chromatography ("TLC"), were in his "expert opinion" not confirmatory test. He added that in 1999 the FSC did not have a confirmatory test based on the UN manual. According to the appellant, TLC is "simply a separation test", but is "not, based on scientific principle", a confirmatory test. The appellant's witness, Mrs. Greig, stated that TLC is not a confirmation test, but is used as "a screening tool or presumptive test".

VI. "IN THE LAST PROTOCOL"

[24] It was necessary for the prosecution to prove that a confirmatory test was "in the last protocol". A scientific protocol is a code generally in writing setting out the procedure for a particular purpose, in this case for the testing of cocaine. Mrs. Corbin's explanation of the protocol at pages 97 and 98 of the record was as follows:

"[T]he protocol consisted of two major components, a scientific and an administrative one. The scientific protocol was primarily geared towards the standard operating procedures for doing the analyses of the unknown substances and these analyses were guided and conformed to the United Nations Drug Control Programmes Manuals. Those were our primary references at the time…there were three main manuals of the series of manuals that we were using. The first one was 'Rapid Tests for Drugs of Abuse', the other one was 'The Testing for and Identification for Cocaine' and the other manual referred to the 'Identification and Testing for Cannabis'."

[25] The United Nations manual prepared by the Division of Narcotic Drugs is dated 1986 and is titled "Recommended Methods for Testing Cocaine" and sub-titled "Manual for use by National Narcotics Laboratories". The manual, admitted in evidence as Exhibit "C", contains an introduction and sections on the description of the pure compounds, the production of illicit cocaine, the physical appearance and chemical characteristics of coca leaf and illicit materials containing cocaine and the analysis of materials containing cocaine. Under the section dealing with the analysis of coca paste and cocaine, there is a subsection setting out "presumptive tests" for cocaine, under which is included the microcrystal test. There is a separate subsection headed "thin layer chromatography of cocaine". The manual is silent as to the nature of this test and there are no references in the manual to the term "confirmatory test".

[26] In cross-examination Mrs. Corbin accepted that the microcrystal test was described in the manual as a presumptive test and was not deemed a confirmatory test, though she contended that it was used in practice as such. She also agreed that the TLC test was "not specifically written in the manual as such as confirmatory". It was the prosecution's case that the microcrystal tests and/or the TLC "can" be used as confirmatory tests and that it was the practice of the FSC to treat the tests as confirmatory and mandatory for the purpose of issuing the Certificate. This was never denied by the appellant. However, the practice at the FSC was quite irrelevant to the perjury charge, since the appellant's answer referred to the protocol.

VII. THE ISSUES

[27] This was a case that called for a clear presentation to the members of the jury of the issues which they had to determine. In Langford and Freeman v. The State of Dominica (2005) 66 WIR 194 at 203a, the Privy Council commended to judges "the sound advice given by Ibrahim JA in the Court of Appeal of Trinidad and Tobago in Fuller v. The State (1995) 52 WIR 424 at 433" when he stated:

"The jury have heard all the evidence in the case when the witnesses testified…What they require from the judge…is his assistance…in relation to the issues that arise for their determination."

[28] The judge at the conclusion of his summation defined the issues for the jury's determination at page 249 of the record as follows:

"Madam Foreman and members of the jury, what are the issues in this case? The Crown contends that the manuals, coupled with the training provided the accused, he had to be aware of the confirmatory steps in the manual, but he relied on the tests specified before October 1999 and after 1999, continuing until he left the Centre in 2001 (sic). On the other hand, the defence contends that nowhere in the literature, namely Exhibit "C", the manual on Recommended Methods for Testing Cocaine, is there any heading or reference to a confirmation or confirmatory test and that the absence of such a description is fatal to the Crown's case.

During the trial, I commented at some point that lawyers write for other lawyers, and scientist write for scientists. You would have heard that the four scientists, or five if you count Mrs. Greig, who have been in this court, all hold a Master of Science degree. However, at the end of it all, it comes down to whom you believe. It is as simple as that." (Emphasis added.)

[29] The issues were not properly defined for the jury and could only be determined satisfactorily in the light of a correct analysis of the statement in the indictment. The trial never properly addressed the key issue: the truth or falsity of the appellant's statement. The case that the jury heard was therefore not one from which they could reach a safe or satisfactory verdict. Further, we do not agree that the issues were determinable simply by the credibility of the witnesses. The credibility of the prosecution's witnesses was not challenged by the defence; it was not suggested that they were lying. It was not the credibility of the witnesses, but the interpretation of their evidence that was open to question.

VII. THE EXPERT EVIDENCE

(a) For the prosecution

[30] Three forensic scientists from the FSC gave evidence for the prosecution and they were treated by the judge, without objection from the defence, as expert witnesses. They were Mrs. Cheryl Corbin, Director of the FSC, Miss Lorraine Alleyne, Deputy Director and Mr. Len Sehntwali, Senior Forensic Scientist, all of whom hold Masters of Science degrees in Forensic Science from King's College, University of London. According to their evidence the FSC conducted confirmatory tests in order to determine whether substances presented to the FSC were cocaine.

[31] Mrs. Corbin explained the procedure clearly at pages 98 and 99 of the record:

"You start your analysis by doing a preliminary identification, a preliminary test. For drug work specifically, this preliminary test was done using various colour tests, and it needs to be understood that these tests are only presumptive…

For completion of the analyses, for example, the presentation of a report or a certificate, you have to move to the next level, which is doing the confirmatory test. Now, there are a number of confirmatory tests that can be chosen from, as the manual would have stated, and what you choose depends primarily on what you have available in your department or institution at the time.

The tools you have to work with. The confirmatory matters that we utilized, we had a choice of two methods: one was the crystal test, which is an instrumental method, because it is done using a microscope and various chemicals to identify crystals that are specific and characteristic of cocaine…You start with the colour test and then you do the crystal test as a choice of confirmatory, or you could choose to do thin layer chromatography, where you use at least two systems or more in doing that test.

All of the tests that we perform, you must use controls, that is, reference standards, and at the time our reference standards were provided by the United Nations Drug Control Programme." (Emphasis added.)

[32] Mrs. Corbin further explained that the Certificate of Analysis was based on the confirmatory test that identified the substance as the drug stated on the Certificate. She continued at page 101:

"when the Certificate is presented to the court, there is only one inference that the court can obtain from looking at the Certificate, that is, that all scientific procedures have been followed; that the result that they see is a true result".

The FSC could not properly present to the court evidence to support a conviction based on tests that were merely presumptive and that did not confirm the existence of the prohibited drug. Mrs. Corbin's evidence was therefore that the FSC used the microcrystal test and/or the TLC test as confirmatory and not presumptive.

[33] It is important to note the case for the defence put to Mrs. Corbin in cross-examination. It was pointed out to her that the microcrystal test was described in the manual as a "presumptive test", not a confirmatory test. Mrs. Corbin's answer was that although in the manual it was "not deemed a confirmatory test"; in practice it was used as a confirmatory test. She offered to explain but was effectively prevented from doing so in the cross-examination. With regard to the TLC test, it was suggested to her that this test was not specifically described as a confirmatory test. She agreed "that it is not written specifically in the manual as confirmatory". It seems to us that this admitted fact was conclusive that the appellant's statement was not false.

[34] However, in re-examination at pages 128 and 129 Mrs. Corbin had the opportunity to explain why the two tests were treated as confirmatory:

"A. Your Lordship, these manuals were published in 1986. The UNDCP conducted training and upgraded the information for the analyses and the confirmation tests during a period of time after, continuing on from 1986.

So as a result of the dynamic process of developing methods, and so on, it was then determined that because the nature of the crystal formed when you do the test for cocaine was so characteristic and specific for cocaine, once the scientist was trained in that technique, that could be used as a confirmatory test. It would not have been written in this because this particular manual was published in 1986, but it did form part of our protocol.

With thin layer chromatography, you have to use at least two systems, along with the relevant controls and reference materials.

Since this time, the United Nations has actually reformatted a lot of the information in their manuals. I am speaking specifically to certain sections.

A. With (sic) the period of this case, Your Lordship, we had already received the information and the training that the microcrystalline test and/or the thin layer chromatography can be used as confirmatory tests, Your Lordship, and the scientists were instructed accordingly.

Q. That is what I was about to ask you. Do you know if the accused received that knowledge, that training etc.?

A. Yes, Your Lordship, he did.

Q. How do you know.

A. Because he did confirm cases before and after this one using the techniques as was instructed." (Emphasis added.)

[35] The evidence-in-chief and cross-examination of Miss Alleyne and Mr. Sehntwali were similar to that of Mrs. Corbin. The evidence given by these scientists from the FSC was a statement of fact that the confirmatory test done by the FSC did form part of the practice or administrative protocol of the FSC at the time and that the appellant was aware of this fact. It followed that according to their evidence the appellant's statement that there was no confirmatory test in the last protocol, as interpreted by them, was false.

(b) For the defence

[36] Although no application was made to treat the appellant as an expert, it was important that the judge should have directed the members of the jury that the appellant was himself an expert and that his evidence should be treated as that of an expert. The appellant maintained that the manual "does not contain a confirmatory test". The manual contains three "presumptive tests for cocaine": (a) colour tests, (b) odour tests and (c) microcrystal test. He denied that the microcrystal test was a confirmatory test. He was referred to the section in the manual on thin layer chromatography and described it as a separation but not a confirmation test. As stated in paragraph [23] above, the microcrystal and the thin layer chromatography tests were not in his "expert opinion" confirmatory tests.

[37] Further evidence was given by the appellant that he went to Fairfax, Virginia, U.S.A. to pursue the drug chemist course with the Drug Enforcement Agency. His evidence was that on that course he became aware that the TLC test could be subject to attack by defence counsel as being unreliable. However, he admitted that he had confirmed cocaine by the TLC test "previous to my knowledge". The appellant further stated that he discussed this issue with his work colleagues at the FSC. It is to be noted that this plank of the appellant's defence was never put to the FSC witnesses by the appellant's counsel.

[38] Miss Renée extensively and effectively cross-examined the appellant. He could not remember details of his discussions with the staff at the FSC following his return from Fairfax. For the first time in cross-examination, he referred to the fact that the FSC had ordered a Gas Chromatograph Mass Spectrometer (GCMS). The appellant described the capabilities of this equipment at page 154:

"Well, this big instrument, what it does as the gas chromatograph side of it, it separates. That is the first thing it does. The mass spectrometer, that is the second part of the machine, would now look at what we call the structure of those separations. With the mass spectrometer, you are now able to identify the specific sub-components of any mixture or component that was entered into your instrument separately."

However, the machine "arrived and it got wet at the airport"; it was damaged and never put into use. The appellant stated that he carried out the colour test, the microcrystal test and the TLC test. The appellant denied that those tests were used by the FSC as confirmatory test. He in effect stated that the FSC had only presumptive tests in place while they were awaiting the use of the machine. He later in cross-examination conceded that they were confirmatory tests being used at the FSC. He said that the FSC did not have a confirmatory test based on the protocol. He then said that a TLC test was not done in the Moses case and that he could not recall the reason, though it was possible that "no reagent" or "no plates" were available.

[39] Mrs. Leslie Sharon Greig gave supporting evidence for the appellant. We will deal below with the legal aspects of her evidence in view of the fact that she was not accepted as an expert witness. She stated that TLC is not a confirmatory test as "there are several other compounds that can give a similar result". TLC is "a presumptive or screening test" and "confirmatory tests are a separate category of tests altogether". She admitted, however, that while she worked at the FSC, the test was used as a confirmatory test, but "it is not classified as a confirmatory test" and that "is based on scientific knowledge". She was not asked in-chief about the GCMS, nor was she re-examined but in cross-examination when asked about tests being used "to confirm something conclusively", she said at page 202:

"Well, the gold standard in the area of forensic science is the GC Mass Spec or Gas Chromatography Mass Spectrometry."

Although not cited to us, it is convenient to mention at this point the English Court of Appeal case of the "Birmingham six", R. v. McIlkenny (1991) 93 Cr. App. R. 287, in which the GCMS test was described at page 295 as "even more sensitive than TLC" and "a thousand times more sensitive" than colour tests to show recent contact with high explosives.

(c) The ground of appeal

[40] A summary of ground 3 of the appeal in relation to the expert evidence in so far as we have to discuss the same relates to the allegation that (i) the judge "wrongly rejected the defence's application to treat Mrs. Greig as an expert witnesss" and "yet he allowed her to provide opinion evidence in the course of her testimony and left it to the jury to treat her as one of the scientists in the case…the net effect was highly confusing to the jury and prejudicial to the appellant" and (ii) "the judge failed to advise the jury how to evaluate expert evidence".

(d) The law and discussion

[41] We set out the relevant aspects of the law on expert evidence that should have informed the reception and consideration of such evidence in these proceedings. Section 66 of the Evidence Act, Cap 121 provides that:

"where a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not prevent the admission or use of evidence of an opinion of that person that is wholly or substantially based on that knowledge." (Emphasis added.)

The three forensic scientists from the FSC were treated as experts and their evidence so accepted. No issue arises on appeal as to their evidence. Mrs. Greig was not accepted by the judge as an expert. In R. v. Doheny and Adams [1997] 1 Cr.App.R. 369 CA, Phillips LJ (as he then was) stated at 374D:

"[I]t is important that any issue of expert evidence should be identified and, if possible, resolved before trial and this area should be explored by the court in the pre-trial review."

[42] The first requirement was for the judge to determine the subject matter upon which the opinion of an expert was necessary. In the South Australian Supreme Court case of The Queen v. Bonython (1984) 38 S.A.S.R. 45 at 46, King CJ stated:

"The general rule is that a witness may give evidence only as to matters observed by him. His opinions are not admissible. One of the recognized exceptions to this rule is that which relates to the opinions of an expert. This exception is confined to subjects which are not, or are not wholly, within the knowledge and experience of ordinary persons: Clarke v. Ryan [1960] HCA 42; (1960) 103 C.L.R. 486. On such subjects a witness may be allowed to express opinions if the witness is shown to possess sufficient knowledge or experience in relation to the subject on which the opinion is sought to render his opinion of assistance to the court." (Emphasis added.)

The forensic scientists from the FSC gave evidence as to the tests for cocaine in the manual and the confirmatory tests used by the FSC as part of its administrative procedures. They therefore furnished the court with scientific information which was likely to be outside the knowledge of the members of the jury.

[43] The second question for the judge's determination was whether Mrs. Greig was competent to give expert evidence on the issue of the confirmatory tests for cocaine. The manner in which the judge approached that question is to be found at pages 194 and 195 of the record as follows:

"EXAMINATION IN CHIEF BY MR. HOLDER

A. Leslie Sharon Greig.

Q. And your qualifications, ma'am?

A. I have a B.Sc. (Honours) double major Biology and Chemistry, and a Masters in Forensic Science.

Q. From where, ma'am?

A. George Washington University, and previously Cave Hill Campus.

Q. Were you at any time employed by the Government Forensic Centre, ma'am?

A. I performed as an intern, student intern and then followed by professional intern in the summers of 1997 and -

THE COURT: I was an intern at the Centre in 1997?

THE WITNESS: 1997, student intern, returning as a professional intern in 1998 until early 1999.

BY MR. HOLDER:

Q. Whilst there, did you do any…tests?

A. Yes, I did.

Q. Are you aware of a scientific protocol at the lab, ma'am?

A. Yes, I am.

MR. HOLDER: My Lord, application My Lord, for the witness to be shown Exhibit 'C'.

(Witness shown Exhibit.)

My Lord, application for the witness to be treated as expert.

THE COURT: Have you laid enough foundation? What has she been doing since 1999?

THE WITNESS: Since 1999, I was a representative for pharmaceuticals and now I work at IBM World Trade Corporation.

MR. HOLDER: She is a scientist, My Lord.

MISS RENÉE: She has a B.Sc., My Lord, in what?

THE WITNESS: Biology and Chemistry, double major.

THE COURT: And a Masters in Forensic Science --

THE WITNESS: Forensic Sciences.

MISS RENÉE: My Lord, an expert in what, really?

THE COURT: Well, let me get it. She is saying since 1999 --

THE WITNESS: I have been a pharmaceutical representative, and subsequent to that, for the last five and a half years, I have been working at IBM World Trade Corporation.

THE COURT: Last five and a half years worked at IBM.

THE WITNESS: Yes, sir.

THE COURT: So is it true to say that since your attachment to the Centre in 1999, you have not used your forensic qualifications?

THE WITNESS: Correct, sir.

THE COURT: Yes, Mr. Holder, I don't see the basis for her to be treated as an expert.

MR. HOLDER: Agreed, My Lord.

THE COURT: Not treated as an expert."

[44] Mrs. Greig's expert evidence was required in relation to the disputed confirmatory nature of the tests used by the FSC to detect cocaine. Her evidence disclosed that she held a Masters degree in forensic science from an American University as did the appellant. No transcript of her degree was produced and no attempt was made to show the relevance of her academic qualifications to the issue before the court but that would have been more relevant than her experience at the FSC. The judge, without giving due consideration to her qualifications or hearing counsel on the matter, ruled that she was not an expert to give evidence because her practical experience of drug testing was limited.

[45] The correct approach for a judge to adopt in deciding whether to allow a witness to give evidence as an expert is stated in Bonython at page 46:

"Before allowing a witness to express such [expert] opinions, the judge must be satisfied that the witness possesses the necessary qualifications, whether those qualifications be acquired by study or experience or both…Before admitting the opinion of a witness into evidence as expert testimony, the judge must consider and decide two questions. The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This first question may be divided into two parts: (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court. The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court."

[46] We should also point out that a judge has a discretion, though it should be exercised sparingly, to direct a voir dire, preferably in the absence of the jury, to determine the qualifications of a witness as an expert upon a particular subject matter and decide whether the purported expert should be allowed to give evidence as an expert witness: Archbold 2006 at10-65. The considerations were succinctly stated by Bingham LJ in R. v. Robb (1991) 93 Cr.App.R. 161 at 165 as follows:

"Thus the essential questions are whether study and experience will give a witness's opinion an authority which the opinion of one not so qualified will lack…If these conditions are met the evidence of the witness is in law admissible, although the weight to be attached to his opinion must of course be assessed by the tribunal of fact."

[47] Before us, in support of the respondent's contention that the judge was correct to reject Mrs. Greig's testimony as that of an expert witness, reliance was placed on the comment of the appellant's counsel when he said "agreed". However, it cannot be a correct interpretation of the comment that counsel consented to Mrs. Greig not being treated as an expert, because such a position would have been inconsistent with the case for the defence. In any event counsel could not legitimise a ruling if it was bad in law.

[48] In the context of the judge's refusal to accept Mrs. Greig as an expert, it is interesting to note what Miss Renée said earlier in response to the no-case submission at page 137 of the record:

"One would have thought, My Lord, that if counsel wished to rebut the evidence of the scientists, seeing that counsel is not one himself, the correct procedure would have been to call a scientist to give that evidence, because it is clear, My Lord, that from the evidence of the scientists, that counsel did not have a clue as to what was going on. That, My Lord, was quite clear.

If counsel wants to rebut their evidence, call a scientist? Let a scientist who speaks their jargon and that understands it, My Lord, let him come and interpret this document. Until then, we have to take guidance from the scientists, and what the scientists said."

[49] We bear in mind the words of Menzies J in the decision of the High Court of Australia in Clark v. Ryan [1960] HCA 42; [1960] 103 C.L.R. 486 at 503 on the correct approach of an appellate court in reviewing the decision of a trial judge as to competency of a witness to give expert evidence, as follows:

"In truth, the decision of a trial judge that a witness is qualified to give expert evidence is very much a question of fact and it is entitled to all, but no more than, the weight that a court of appeal gives to a finding of fact upon the hearing of an action. In Bratt v.Western Air Lines (1946) 166 A.L.R. 1061 and the annotation thereto at page 1067, what appears to me to be the correct rule is stated as follows: "The qualification and competency of one to give opinion evidence as an expert is primarily in the discretion of the trial court, and the admission or exclusion of such testimony on the ground that the witness was or was not qualified to testify as to his opinion as an expert, will not be reviewed or reversed by the appellate court except where such discretion has been abused, as where there is absolutely no evidence that the witness had the qualifications of an expert and his opinion testimony has been admitted as that of an expert, or where in deciding upon the question of his competency the trial court has proceeded upon erroneous legal standards."

[50] Mrs. Greig had on paper the same academic qualification as the other forensic scientists, who were held by the judge to be competent to give expert evidence. Although she had limited and no recent experience of drug testing, this did not preclude her competence as an expert witness. Her lack of recent practical experience should not have affected the admissibility of her evidence as an expert, but instead would have been a matter for the jury to consider in determining the weight to attach to that evidence. We are therefore of the view that the trial court proceeded upon erroneous legal standards. Mrs. Greig fulfilled the requirements of section 66, referred to in paragraph [36] above, to permit the admission and use of her opinion evidence. She passed the test in Bonython of possessing sufficient knowledge in relation to the subject on which her opinion was sought to render her opinion of assistance to the court.

[51] A similar situation arose in a recent Privy Council case in which the expert evidence of a pathologist was rejected on the basis that though he had some practical experience he had no academic qualification in the area under consideration. The Privy Council held that the trial judge's decision to exclude the evidence of the pathologist on the basis that he was not an expert in relation to the evidence he gave was erroneous in point of law. The judgment in State of Trinidad and Tobago v. Boyce [2006] 2 AC 76 was delivered on 11 January 2006, three weeks prior to the start of the trial in the instant case on 31 January 2006.

[52] In that case the defendant struck another man a hard blow to the head. The man was taken to hospital, where he underwent an emergency craniotomy, but he developed aspiration pneumonia and was put on a ventilator, where he remained in a coma until he died. The defendant was tried on a charge of manslaughter and as part of his defence, he contended that it was the deceased's treatment in hospital that had caused his death. The trial judge ruled that the pathologist called by the prosecution was unqualified to give an opinion on the cause of death and that his evidence was inadmissible and should be withdrawn from the jury. He then ruled that the evidence of the prosecution's other medical witness did not provide a sufficient basis for the jury to find that the defendant had caused the death and he accordingly directed the jury that the defendant be acquitted.

[53] The pathologist was "young and relatively inexperienced". He had been employed by the Trinidad and Tobago Forensic Science Centre for eight months prior to giving his evidence. He did not have the required postgraduate degree in forensic pathology to be registered as a forensic pathologist with the Trinidad and Tobago Medical Board. He had done a fellowship in Canada, but this was more in the nature of an apprenticeship than a formal course leading to a certificate or diploma. However, he did have experience of performing a considerable number of autopsies and the Chief Medical Examiner had recommended him as competent to act as a forensic pathologist at the Forensic Science Centre. The Court of Appeal was of the opinion that the trial judge was wrong in law to reject the evidence of the pathologist. The Privy Council agreed. Lord Hoffmann said at paras. 25 and 26 of the judgment:

"The Court of Appeal said that [if necessary] it would have held that the judge's exclusion of the evidence of [the pathologist] was erroneous in point of law. He had concentrated entirely on whether the doctor had a paper qualification and ignored the possibility that he might, by reason of his knowledge and experience, be able to assist the jury in determining the cause of death. It was true that his experience was still relatively limited but the jury had seen him give evidence both in chief and in cross-examination and would no doubt take both his qualifications and experience into account in estimating the weight of his evidence…their Lordships agree. It follows that the judge's [ruling was] erroneous in point of law."

[54] Although the judge ruled that Mrs. Greig was not an expert, the trial proceeded as if she was an expert. It is clear that "the opinion of the non-expert witness as to a matter requiring expert evidence is irrelevant and inadmissible": Criminal Evidence, Fifth Edition (2004) by Richard May and Stephen Powles at 6-03. Mrs. Greig in fact gave evidence on the significance of the tests for cocaine, without any objection. The prosecution cross-examined her extensively in what amounted to 16 pages of transcript (pages 199 to 217 of the record) and sought her opinion on the tests for cocaine, yet inconsistently tried to show that she was not qualified to give the evidence because she had been employed at the FSC for only nine months. She stated that she had experience in drug testing and was aware of the scientific protocol.

[55] The practical effect of the judge's ruling that Mrs. Greig was not competent to give expert evidence for the defence was described by Sir Richard in his own inimitable way thus:

"I contend that the judge was wrong, a major advantage in the eyes of the jury went to the prosecution. Their witnesses are experts, but his isn't any expert, and the judge is saying that this is a matter of science and he had no experts, but they have all the experts. So he would be like a man in warfare without the appropriate weaponry, in circumstances in which the adversary had all the weaponry and he had none. But then, the whole thing was drowned in a sea of confusion thereafter. Look what happened. Having rejected her as an expert, she then took the witness stand and was asked a series of opinions from the prosecutor, and to some extent too from counsel for the defence, and the judge never objected to any of that. So I wonder what the jury was thinking. She is rejected as an expert, yet she is treated as an expert."

[56] The judge directed the jury in relation to Mrs. Greig's evidence at pages 247 to 248 of the record:

"Mrs. Leslie Greig gave evidence for the accused. Mrs. Greig, who also holds a Masters in Forensic Science from George Washington University, had a brief attachment [at the FSC] first as a student, then for nine months from July 1998 to March 1999. I could not treat her as an expert witness, because really since 1999, on her evidence, she was not involved in forensic matters.

As a matter of fact, Madam Foreman and members of the jury, her evidence specifically was to me, "since 1999, I have been a pharmaceutical representative. Subsequent to that, for the last five and a half years I have been working at IBM World Trade Corporation. It is true to say that since my attachment in 1999, I have not" -- she said it is correct to say she has not used her scientific qualifications.

It is also of some note, Madam Foreman and members of the jury, that she was not at the Centre in October 1999 with Mr. Sergeant when this matter came up. It is for you, Madam Foreman and members of the jury, to determine what weight you attach to her evidence, since it is not that of an expert in the field. After Mrs. Greig's evidence, the defence closed its case." (Emphasis added.)

[57] The jury was therefore not given any meaningful assistance as to how to treat Mrs. Greig's evidence in view of the fact that she was ruled not to be an expert, but nevertheless gave expert evidence. If she was not an expert, she was not competent and should not have been allowed to give evidence on the confirmatory nature of the drug tests. As she did give evidence, that evidence had to be analysed and put in context for the jury. There is obvious merit in this ground of appeal as the Court proceeded on an erroneous legal basis and in an inconsistent manner. As Mrs. Greig's evidence was crucial to the defence, it follows that the manner in which it was dealt rendered the conviction unsafe.

[58] The judge did in fact give the jury the standard directions on expert evidence, that it is permitted in a criminal trial to provide the jury with information and opinion, which is within the witnesses' expertise, but which is likely to be outside the jury's experience and knowledge; that the jury is entitled and would no doubt wish to have regard to the opinion expressed by the expert when coming to its own conclusion about that aspect of the case, but does not have to accept the evidence of the expert; and that the expert evidence generally relates only to part of the case, all of the evidence of which must be considered before reaching a verdict. However, a judge should also direct the members of the jury so that they understand the purpose of the expert evidence by clearly identifying it and the issue that the expert evidence seeks to address. As stated in Doheny and Adams at 375C:

"When the judge comes to sum-up, the jury are likely to need careful directions in respect of any issues of expert evidence and guidance to dispel any obfuscation that may have been engendered in relation to areas of expert evidence where no real issue exists."

[59] In summary, the prosecution's case was that the FSC's scientists, including the appellant, did conduct confirmatory tests for cocaine and those tests were in the UN manual and formed part of the FSC's administrative protocol that existed in October 1999. It follows from the prosecution's case that the appellant knew that his statement of fact to the contrary was false. On the other hand, the defence case was that the tests in the scientific protocol or manual that were carried out by the FSC were not described therein as confirmatory. Further, it was the appellant's opinion that they could in 1999 not have been regarded as confirmatory because they were subject to at least a 5% error. Hence the FSC had ordered the GCMS, which was "the gold standard" of confirmatory tests. The most favourable interpretation of the defence was therefore that the statement in the indictment was as a matter of fact not false or alternatively a matter of scientific opinion on which the appellant held an honest opinion. The judge was under an obligation to give the members of the jury clear directions on the defence case. Further, "where two or more expert witnesses give evidence for opposing sides, the direction to the jury should be to convict only if it is satisfied beyond reasonable doubt that it should accept the expert evidence adduced by the prosecution and reject that adduced by the defence": Criminal Evidence, Fifth Edition (2004) by Richard May and Stephen Powles at 6-45. Hence the importance of a direction that the appellant's evidence was given in his own defence as an expert, of putting to the jury the defence as a matter of fact or scientific opinion and of adopting the correct approach to Mrs. Greig's evidence.

[60] We should point out that the jury was entitled to find the defendant guilty if the statement was an opinion that he did not honestly hold. Phipson on Evidence, Sixteenth Edition (2005) at33-11 and 33-27 suggests that an expert witness is exposed to a prosecution for perjury "if he gives evidence of an opinion that he does not truly hold (or makes false claims about facts alleged to have been discovered by an expert technique)". Folkes v. Chadd (1782) 3 Doug. K.B. 157 is noted in support; Lord Mansfield CJ delivering the opinion of the Court of King's Bench said at page 159:

"I cannot believe that where the question is, whether a defect arises from a natural or an artificial cause, the opinions of men of science are not to be received. Hand-writing is proved every day by opinion; and for false evidence on such questions a man may be indicted for perjury." (Emphasis added.)

The appellant was entitled to have a summation of his defence presented to the members of the jury in the most favourable light to himself so that if they believed that defence or were in any doubt about it, he would be acquitted.

[61] In view of the manner in which this case was conducted in relation to the expert evidence, we conclude this section with some guidance from the English cases on the duties of an expert witness that are owed to the court in a criminal trial. The most recent case is R. v. Bowman [2006] EWCA 417 (2 March 2006), in which Gage LJ referred to the authorities of National Justice Compania Naviera S.A. v. Prudential Assurance Co. Ltd. ("Ikarian Reefer") [1993] 2 Lloyd's Rep. 68 and R. v. Harris [2006] UKHL 40; [2006] 1 Cr. App. R. 5 and listed some "necessary inclusions" in expert evidence "to help build up a culture of good practice", which we adapt as follows:

(i) Details of the expert's academic and professional qualifications, experience and accreditation relevant to the opinion to be given;

(ii) The substance of the instructions received, the questions upon which an opinion is sought, the materials provided and considered, and the documents, statements, evidence, information or assumptions which are material to the opinion to be given;

(iii) Where there is a range of opinion, a summary of the range of opinion and the reasons for the opinion to be given, and any material facts or matters which detract from the expert's opinion;

(iv) Literature or any other material which might assist the court; and

(v) A statement that the expert has complied with his/her duty to the court to provide independent assistance by way of objective unbiased opinion in relation to the matters within his or her expertise.

VIII. OTHER GROUNDS OF APPEAL

[62] We have not found it necessary or helpful to discuss the other grounds of appeal. However, our consideration of the submissions on them has fortified our view of the manner in which the appeal should be disposed. Nevertheless, we should add that apart from the grounds of appeal, it appears to us that witnesses were often interrupted by the judge at crucial points of their evidence. Trial judges should heed the guidance of this Court set out in Colin Wooding v. R., Criminal Appeal No. 9 of 2002 (4 October 2005), which dealt with interruptions of and interventions by the judge and at para. [11] affirmed the requirement that "the trial must have been fair in the eyes of the defendant and seen to have been so by an objective by-stander".

IX. CONCLUSION AND DISPOSAL

[63] We should conclude by trying to dispel any lingering misconception about the role of the Court of Appeal in exercising its criminal jurisdiction. We cannot improve on the statement of Lloyd LJ (as he then was) in McIlkenny, referred to at paragraph [39] above. We replace the references to the English statutory provisions as they were with the current Barbados statutory provisions and make our own additions in square brackets, as follows:

"The Court of Appeal [in its criminal jurisdiction] is the creature of statute. Our powers are derived from, and confined to those contained in the Supreme Court of Judicature Act, Cap. 117A and the Criminal Appeal Act, Cap 113A. We have no inherent jurisdiction apart from statute…Just as we have no powers other than those conferred on us by Parliament , so we are guided by Parliament in the exercise of those powers. Thus by section 4(1) of the Criminal Appeal Act we are directed to allow an appeal against conviction if, but only if, (a) we think that the conviction is unsafe or unsatisfactory; (b) there has been a wrong decision on a question of law or, (c) there has been a material irregularity [subject to our power to exercise the proviso in section 4(2)]. In all other cases we are obliged to dismiss the appeal. Where we allow an appeal, we are directed by section 4(3) to quash the conviction. Where we quash the conviction, the order operates, by virtue of section 4(4) as a direction to the trial court to enter a verdict of acquittal, except where a retrial is ordered under section 15 of the Act. Nothing in section 4 of the Act, or anywhere else obliges or entitles us to say whether we think that the appellant is innocent. This is a point of great constitutional importance. The task of deciding whether a man is guilty falls on the jury. We are concerned solely with the question whether the verdict of the jury can stand." (Emphasis added.)

[64] In the recent House of Lords decision of R. v. Pendleton [2001] UKHL 66; [2002] 1 WLR 72, Lord Hobhouse of Woodborough stated at para. 38:

"Where the conviction is after trial, it is the trial and the verdict which are relevant. But, in my judgment it is not right to attempt to look into the minds of the jury. Their deliberations are secret and their precise and detailed reasoning is not known. For an appellate court to speculate, whether hypothetically or actually, is not appropriate. It is for the Court of Appeal to answer the direct and simply stated question: Do we think that the conviction was unsafe?" (Emphasis added.)

Lord Hobhouse in the same paragraph defined his understanding of what was meant by a conviction being unsafe, as follows:

"'Unsafe' is an ordinary word of the English language. It connotes a risk of error or mistake or irregularity which exceeds a certain margin so as to justify the description 'unsafe'. It involves a risk assessment."

Lord Bingham of Cornhill stressed at paras. 12 and 19 the important principle that:

"The Court of Appeal is a court of review, not a court of trial…the Court of Appeal bears very clearly in mind that the question for its consideration is whether the conviction is safe and not whether the accused is guilty".

For the reasons that we have stated, essentially because the appellant did not have his case put to the jury in a way which was required by the indictment and because the defence's only witness was prevented from giving expert testimony, we think that the conviction was unsafe.

[65] Miss Renée submitted that "if this Court perceives any merit in any of the submissions of counsel for the appellant, that this is a fit and proper case for the application of the proviso". It may seem anomalous to consider the proviso in the light of our holding that the verdict is unsafe. However, the applicable test for the Court to apply in determining whether no substantial miscarriage of justice has occurred is that approved by the Privy Council in Anderson v. R. (1972) A.C. 100 and followed in numerous appeals from the Caribbean. Lord Guest at page 107C stated:

"The test…is…whether 'if the jury had been properly directed they would inevitably have come to the same conclusion.' …[T]he provision assumed 'a situation where a reasonable jury, after being properly directed would, on the evidence properly admissible, without doubt convict'."

There is an abundance of authority that the Court will not apply the proviso in circumstances where "the defence of the appellant was not adequately dealt with": Hardat Ketwaru v. The State (1999) 59 WIR 290 at 297g (Guyana CA). In the instant case we cannot be sure that if the case had been properly presented that the jury would without doubt have convicted.

[66] It also appears to the Court that the interests of justice do not require that we order the appellant to be retried. First, a Court of Appeal will not generally order a retrial to cure deficiencies in the presentation of the case "in order that the Crown shall have another chance to fill the gaps": perLord Diplock in the Privy Council case of Reid v. R. (1980) A.C. 343 at 348A. Indeed, it is doubtful if in the instant case the prosecution evidence was capable of sustaining the offence with which the appellant was charged. Secondly, the offence arose from evidence given in early November 2001 and the circumstances do not warrant a retrial five years after the event. Thirdly, the appellant has been in custody since he was sentenced and his application for bail pending appeal was refused. Finally, the judge's sentencing remarks militate against ordering a retrial. We operate in a small jurisdiction and trial judges should exercise an appropriate degree of circumspection in their sentencing remarks, so as not to prejudice a retrial. Lord Steyn in his dissenting opinion against a retrial in Bennett and John v. R. (2002) 60 WIR 123, a Privy Council case from Jamaica suggested at 142c "an insistence on the principle that there may only be a retrial if it can be scrupulously fair".

[67] In the result, we allow the appeal, quash the conviction and set aside the sentence.

Justice of Appeal Justice of Appeal

MOORE JA dissented:

[68] I do not agree with my learned brothers that this appeal should be allowed and the conviction and sentence set aside. My reasons are set out in the following paragraphs.

[69] On 6 February 2006 the appellant was convicted of perjury contrary to section 3 of the Perjury Act and on 6 February 2006 he was sentenced to three years in prison by the learned trial judge. The appellant appeals against conviction and sentence and filed seven grounds of appeal.

BACKGROUND

[70] The appellant is a forensic scientist, having graduated from John Jay College in Criminal Justice, City University of New York with the B.Sc. Degree and the M.Sc. Degree in Forensic Science. He also had 'several years' training at Yonkers Police Academy'. Between 1 November 1997 and 29 January 2001 he was employed as a forensic scientist at the Forensic Sciences Centre (FSC) and, during that period, conducted analyses of substances to determine whether they were narcotic drugs.

The Moses Trial

[71] The appellant's involvement in the Moses trial began on 1 October 1999. A Forensic Drug Submission Form was delivered to the appellant with 24 packages for analysis. Among these packages were some containing vegetable matter and others containing a white solid substance. After testing, it was determined that the vegetable matter was cannabis and the white solid substance was cocaine. Abraham Moses and two other men were charged in connection with these illegal drugs.

[72] At the Moses trial, the appellant gave expert evidence of his analysis of the 24 packages. He testified about the tests he used to determine the nature of the substances. Under cross-examination he agreed with Counsel that "there were confirmatory tests for the analysis of cannabis" and that they "were done in this case". In respect of his analysis for cocaine, the appellant said in examination in chief that he found the substance to be cocaine. However under cross-examination, he said that a confirmatory test was not done in this case because it was not in the last protocol at that time.

[73] It was his explanation of his failure to do a confirmatory test for cocaine in the Moses trial that led to the appellant's subsequent charge. Simply put, the prosecution case against the appellant at his trial was that when he made the statement that a confirmatory test was not done because it was not in the protocol at that time, the appellant knew that he was deliberately telling lies on oath. He was therefore charged for a deliberate false statement on oath.

Evidence against the Appellant

(i) The procedure for Analysing Drugs

[74] Evidence was led by the prosecution that an analysis of substances to determine whether they are narcotic drugs involves following certain administrative procedures and carrying out certain scientific tests. Analysts are required to follow procedures and carry out tests in accordance with recommendations in UNDCP manuals. One of the manuals used is called 'Recommended Methods for Testing Cocaine'. A manual so called was admitted in evidence. The FSC itself also developed internal protocols to supplement the literature provided by UNDCP.

(ii) The Appellant's Certificate of Analysis

[75] For the purposes of the Moses trial the appellant issued a Certificate of Analysis dated 26 October 1999. It was produced as an exhibit in his trial and read as follows:

"The white substance was analysed and found to be cocaine".

[76] This certificate was endorsed and signed by the appellant in these words:

" I, MARK A. SARGEANT do solemnly declare that the evidence set out in this document is true to the best of my knowledge and belief and the opinions expressed therein are honestly held."

MARK A. SARGEANT, M.Sc.

Forensic Scientist"

(iii) Appellant's Deposition in the Moses Trial

[77] The appellant's deposition taken during the preliminary inquiry into the Moses matter on 29 January 2001 and a transcript of his actual evidence at the Moses trial on 7 November 2001 were produced by Snr. Supt. Morgan Greaves during the appellant's trial. On his deposition the appellant's evidence was identical to that in the Certificate of Analysis. The appellant said that 'the white substance was analysed and found to be cocaine'.

(iv) Evidence of Cheryl Corbin and other Forensic Scientists

[78] Three forensic scientists employed by the FSC were called to give expert evidence for the prosecution. They were Mrs. Cheryl Corbin, Director of the FSC; Miss Lorraine Alleyne, Deputy Director and Mr. Len Schntwali, Senior Forensic Scientist. Each of these scientists holds an M.Sc. degree from King's College, University of London. They all gave critical evidence that the FSC conducted confirmatory tests to determine whether substances submitted for analysis are cocaine.

[79] The procedure for testing was explained by Mrs. Corbin as follows:

"You start your analysis by doing a preliminary identification, a preliminary test. For drug work specifically, this preliminary test was done using various colour tests, and it needs to be understood that these tests are only presumptive…

For completion of the analyses, for example, the presentation of a report or a certificate, you have to move to the next level, which is doing the confirmatory test. Now, there are a number of confirmatory tests that can be chosen from, as the manual would have stated, and what you choose depends primarily on what you have available in your department or institution at the time.

The tools you have to work with. The confirmatory matters that we utilized, we had a choice of two methods: one was the crystal test, which is an instrumental method, because it is done using a microscope and various chemicals to identify crystals that are specific and characteristic of cocaine…You start with the colour test and then you do the crystal test as a choice of confirmatory, or you could choose to do thin layer chromatography, where you use at least two systems or more in doing that test.

All of the tests that we perform, you must use controls, that is, reference standards, and at the time our reference standards were provided by the United Nations Drug Control Programme."

[80] Mrs. Corbin further explained that the Certificate of Analysis was based on the confirmatory test that the substance is the drug found as stated on the certificate. She continued at page 101:

"when the certificate is presented to the court, there is only one inference that the court can obtain from looking at the certificate, that is, that all scientific procedures have been followed; that the result that they see is a true result".

[81] In my view Mrs. Corbin's evidence in relation to the nature and effect of the Certificate of Analysis was powerful evidence against the appellant. She said that the basis of the Certificate of Analysis was the confirmatory test that identified the substance as the particular drug stated on the certificate. She then explained that the effect of the Certificate is that "there is only one inference that the court can obtain from looking at the Certificate, that is, that all scientific procedures have been followed; that the result that they see is a true result." She also explained that the FSC used either the microcrystal test or the TLC test to confirm the nature of a substance (the confirmatory test). The FSC did not rely on a presumptive test.

[82] Under cross-examination it was put to her that the manual described the microcrystal test as a 'presumptive' rather than a confirmatory test. Mrs. Corbin answered that, notwithstanding its description in the manual, it was used in practice as a confirmatory test. Counsel did not allow her to explain in cross-examination but she did so in re-examination - see pp. 128 to 129 of the record:

"A. Your Lordship, these manuals were published in 1986. The UNDCP conducted training and upgraded the information for the analyses and the confirmation tests during a period of time after continuing on from 1986.

So as a result of the dynamic process of developing methods, and so on, it was then determined that because the nature of the crystal formed when you do the test for cocaine was so characteristic and specific for cocaine, once the scientist was trained in that technique, that could be used as a confirmatory test. It would not have been written in this because this particular manual was published in 1986, but it did form part of our protocol.

With thin layer chromatography, you have to use at least two systems, along with the relevant controls and reference materials.

Since this time, the United Nations has actually reformatted a lot of the information in their manuals. I am speaking specifically to certain sections.

A. With the period of this case, Your Lordships, we had already received the information and the training that the microcrystal test and/or the thin layer chromotherapy can be used as confirmatory test, Your lordship, and the scientists were instructed accordingly.

Q. That is what I was about to ask you. Do you know if the accused received that knowledge, that training etc.?

A. Yes, Your Lordship, he did.

Q. How do you know?

A. Because he did confirm cases before and after This one using the techniques as was instructed.

Q. Thank you ma'am. So you are saying even though the word "confirmatory" doesn't appear, you are saying it is still used, these tests TLC, whatever, could still be used as confirmatory tests

A. It is scientifically acceptable procedure to do that, Your Lordship.

[83] As to the TLC test, Mrs. Corbin also agreed under cross-examination that this test was not specifically written in the manual as a confirmatory test.

[84] Miss Alleyne and Mr. Sehntwali supported Mrs. Corbin. As I read their evidence, I am satisfied that they were asserting that the confirmatory test carried out by the FSC formed part of its protocol at

the relevant time and the appellant was aware of this position. Clearly, the evidence of these scientists led to the conclusion that the appellant's statement that there was no confirmatory test in the last protocol was untrue. Of course, ultimately, this conclusion was a matter of fact for the jury. It was the evidence of experts and, as such, a matter of fact. The jury were entitled to attach such weight to it as they thought fit.

The case for the Defence

[85] The appellant gave sworn evidence. His defence essentially was that the microcrystal test and the TLC test were not confirmatory tests. And he was speaking as an expert. Secondly, he insisted that in 1999 the FSC had no confirmatory test based on the manual published by UNDCP. He characterized the TLC as a separation test not based on scientific principle. He called a witness, Mrs. Leslie Greig, who supported this evidence. I shall return to this witness later.

[86] It would be instructive to introduce here the pertinent examination in chief and cross-examination of the appellant in the Moses trial.

MR. SADDLER: So you had 24 packages in all, sir?

A: Yes, sir.

Q. You did anything to these packages?

A. I took representative samples of each of the Contents of the 24 packages. These samples were subsequently analysed and the chemical content of each sample was then identified.

Q. What was the result of your examination, sir?

A. Results of analysis; The vegetable matter was examined and found to consist of seeds crushed leaves and stalks of the plant of the genus cannabis from which the resin had not been extracted …The white substance was analysed and found to be cocaine.

Q. How many packages were found?

A. There were 12 packages. Packages 13 to 24 are the ones that contained the white solid substance. All these were tested to be cocaine." (Emphasis added.)

"CROSS EXAMINATION BY MR. ALLEYNE

Q. How many tests, one?

A. I did three colour tests and these were the Cobalt Thiocyanate test, the Mandelin test and the Marquis test.

Q. And these are all basic tests?

A. These are all tests to look for the presence of the tertiary and quarterly amines that is found in cocaine.

Q. Did you do any confirmatory test?

A. At that time we never used to do any confirmatory test. At that time we used a host of colour tests.

Q. But not confirmatory?

THE COURT: Did you use any confirmatory test?

A. No. It was not in the protocol at the time.

MR. ALLEYNE: Now, just help me here. The practice is to do these several tests and also to do confirmatory tests. Is that correct?

A. With respect to the cocaine, yes, the practice was to do confirmatory test in all types of examinations in this island.

Q. But the confirmatory test was not done in this particular case?

A. No, because it was not in the last protocol at that time.

Q. I see. What would be the reason for doing confirmatory test?

A. Obviously the reason for doing confirmatory test is to confirm one's results.

Q. I see. And these confirmatory tests are normally done because the basic test results are not always absolute. Correct?

A. Yes, sir.

Q. So that when the confirmatory tests are not done there is some doubt, however marginal or however small, there is some doubt about the basic test?

A. Yes, sir. It could be.

Q. Let me put it to you in a sentence. You cannot be absolutely sure that this is cocaine in the absence of a confirmatory test?

A. Scientifically speaking, no.

MR. ALLEYNE: You cannot be absolutely sure that this s ubstance which you tested is cocaine?

A. Scientifically speaking, no.

[87] When confronted by Snr. Supt. Greaves at the C.I.D. on 3 December 2001 and told that his evidence at the Moses trial was false, the appellant, under caution, said: "I did not commit an act of perjury."

[88] The appellant's evidence also contained an admission that there was a confirmatory test. At pp.164 and 165 under cross-examination he said,

"With respect to cocaine, yes, the practice was to do confirmatory tests with all types of examinations in this island."

and at p. 167 when the appellant was reluctant to answer a question put by Miss Renee the following occurred:

The Court: You have expanded a lot already. Answer the question, Yes or no.

The Witness: Okay, yes or no that there were confirmatory tests at the lab being used?

The Court: That is the question.

The Witness: I would say yes, there were."

[89] The appellant's evidence was inconsistent. The record speaks for itself.

Q. These two tests, that is, the Thin Layer chromatography test and the microcrystal test, were said to be confirmatory tests. Are they confirmatory tests in you expert opinion?

A. No, they aren't.

Q. And that is based on?

A. That is based on this protocol, and basically the errors that are associated with these tests.

Q. In 1999, did you go overseas on specialized training?

A. Yes, Sir.

Q. Where, sir?

A. I went to Fairfax, Virginia to do the Drug Chemist

Course at the DEA training.

Q. Did this involve any TLC tests, etc.?

A. Basically what the course was about was to educate drug chemists or potential drug chemists of the methods and also the shortcomings of certain techniques.

Q. You had any training up there in the same TLC test?

A. Basically what we did was that during one of the class sessions, one of the chemists brought in a video and this video specially designed for defence lawyers, in which another defence lawyer, a well-known defence lawyer in North America whose job is just to defend drug cases, was actually in a classroom setting teaching other young defence lawyers how to question and put into question a TLC test.

Basically, what was being pointed out there is that the TLC plate is a fixed length of plate. So it's basically, sometimes it could be this long (witness indicates, could be a bit longer, and in that plate, his argument was, how many known chemicals and mixtures are there in the world today that can work on that plate? And his argument was there are over 2000. Therefore, he said, when you look at this, and this is just in layman's term, you don't even go into chemistry, so when you look at this, what you are seeing is that you have to determine, divide that distance of plate into a 1000 or 2000 and see how that spot which, by the way, could be a centimeter in diameter, can be covering up several other possibilities. And this is just from a layman's point of view. He is not speaking to the chemical aspect, which is that it is a separation method. And upon that they said to us, "This is not something you want to go to court with."

Q. So in a nutshell you are saying, sir, that you cannot confirm cocaine using the TLC, that it is not a confirmatory test?

A. It is not a confirmatory test.

Q. You have ever confirmed cocaine using this test, sir?

A. Sir, previous to my knowledge, yes, I have.

Q. Mr. Sargeant, you did admit that you were using these tests, but you are saying the department was wrong. Is that not true?

A. I am saying, based on the question asked to me, my response was that they were not in there.

Q. Isn't TLC in there?

A. Yes, it is.

Q. Right.

A. But it is not a confirmation.

Q. I was suggesting to you that that is what the department used.

A. Yes, that is what the department used.

Q. And that the department used the TLC, which is not a presumptive test, in addition to the two presumptive tests to get the confirmation.

A. That cannot be done. That is not scientifically sound.

Q. I am asking you if that is what --

A. That was the practice.

Q. Whether you would use it or not, I am asking you if that was not done?

A. That was the practice, yes.

Q. Yes.

A. And that was the practice I was trained in.

Q. That is it exactly. That is what you were trained as a confirmatory test, is that not so?

A. No, that was the test I was told to do, "You go, you do the colour tests" -

Q. Mr. Sargeant, what was used as a confirmatory test at the department? Not what you believed to be right or wrong, what did the department train you to use as a confirmatory test?

A. I was trained to do three things: To sample a drug, and when I sample it, to perform colour test and perform crystal test. Not crystal -- well crystal test, which is the same thing - - colour test, crystal test and the TLC.

……………………………

Q. So, in other words, you are admitting to this court that in the case of R. v. Lavine, Jean-Marie and Moses, when you made statements that there were not confirmatory tests, that was a false statement you made?

A. I never said that even back then. If you look at line 14 and onwards, I said, "But they were not done in this, particular case."

Q. Yes, that is the whole essence.

A. No, but you are saying if there were none there at all. I am saying that at that time - - as I wanted to go and you stop me short -at that time, with the protocol or the guidelines that we had in place, there were no confirmatory tests. Subsequent to that -

The Witness: Based on training I had, once you do a series of colour tests, you did these colour tests that you were given and you do your TLC and it comes out in a certain way, the colour test and the TLC, you were instructed that that is what you would base your findings on.

By Miss Renée:

Q. Good. So you were instructed by the department to use colour tests and to use TLC, in order to come to conclusive findings. That is what you just told this court?

A. I just said that I was instructed that if the colour test, you do a colour test, if they gave a certain result and you do the TLC and it gave a certain visualization, then that is what you used to prepare your report from.

Q. In other words then, that is conclusive.

A It isn't.

Q. Didn't you say that this was conclusive to you based on your training, Mr. Sargeant?

A. Yes, based on my training then, then.

Q. Look at the certificate of Analysis, page 2, and there is a declaration there at the bottom. Read what that declaration states.

A. "I. Mark Sargeant, do solemnly declare that the evidence set out in this document is true to the best of my knowledge and belief and the opinions expressed herein are honestly held."

Q. Right. And the conclusion that you came to, results of analysis, turn to the front page, what you are swearing to as true, what did you conclusively conclude?

A. Results of analysis: Vegetable matter was examined and found to consist of seeds, crushed leaves and stalks of the plant of the genus cannabis from which the resin had not been extracted."

NEXT PARAGRAPH: "White substance analyzed; found to be cocaine."

Q. Now, based on what you told us is the protocol in your book, was your training at the department, was this statement true?

A. Based on what limitations we had, yes.

[90] Mrs. Greig testified that there was no confirmatory test in the protocol but that cocaine could be identified using the protocol. She said that to say that cocaine could be identified but that cocaine could not be confirmed might seem like semantics. She further testified under cross-examination at pp 208 and 209 as follows:

Q. It is possible to use a combination of the tests in the book to arrive at a confirmatory test or a conclusive conclusion?

A. To a conclusion, yes, sir.

Q. Now, if I were to say to you that this book details how you can establish the identify of a substance which is cocaine, or how you can confirm it - if I were to say to you that this book allows you to establish the identity of cocaine, would you understand that to mean that this book details for you how you can confirm the identity of cocaine?

Let me go over it again. If I were to say to you the book - - that book - details for you how you can establish the identity of cocaine, is that the same thing as saying that that book details for you how you may confirm the identity of cocaine, a substance which is cocaine?

A. It is challenging and potentially dangerous to use the word "confirm," even though it be significantly narrow down or for all intents and purposes "confirm" the presence of cocaine. That is why - - I am just cautious about making that type of statement, but yes, identify the presence of a drug, yes.

Q. Okay. As a scientist, if I ask you to establish the identity of a substance to find out if it is cocaine, am I not asking you to confirm the identity of the substance?

A. Perhaps in plain English, yes, sir.

Q. What is the difficulty?

A. Because scientifically speaking, you have to be able to establish things like reliability, reproducibility, the degree of accuracy, and so on and so forth, and so that is why the term "confirmatory test" is used so cautiously because there are several parameters, analytical parameters that have to come into play, that are not applicable with presumptive tests.

And so legally speaking, if someone were to come back and say, "show me what percentage you think this is it," and I said 99 percent or 98 percent, and they find another test that has a 99.98 percent chance of it being that, that instantly - and they run that test, and it does not match with these battery of presumptive tests, you could be in an exposure, from a professional credibility point of view, at matching those two possibilities or probabilities.

It sounds very long-winded and very confusing, but within accuracy, I am thinking about how the scientific information is put across. This is why it is laid out how it is laid out."

Q. Do you know if this test was used as a confirmatory test at the lab, ma'am, during the time that you were there?

A. During the time I was there, we used the thin Layer Chromatography test as one of the tests to confirm, quote, unquote, the presence of cocaine.

Q. You used it as a confirmatory test?

A. Yes, more or less, for all intents and purposes.

GROUNDS OF APPEAL

Ground 1

[91] In this ground Counsel contended that the learned trial judge (a) omitted to define the requirement of "corroboration for the benefit of the jury; (b) failed to identify the evidence that was capable of constituting corroboration, and (c) failed, too, to explain the rationale for the rule and its special relevance to the expert witnesses of the prosecution who may be seen to have a personal/professional interest of their own to serve in this case. The submission was that these omissions represent a serious misdirection in law.

[92] Section 13 of the Perjury Act provides:

"A person shall not be liable to be convicted of any offence against this Act, or any offence declared by any other Act to be perjury or subornation of perjury, solely upon the evidence of one witness as to the falsity of any statement alleged to be false."

[93] In R. v Carroll 99 Cr. App. R 381, CA, it was said that a judge is required in summing up to refer to section 13 (same as s.13 Barbados) and the need for the jury to have before it the evidence which they accept of more than one witness; that is to say, either of one or more other witnesses or at least of some other supporting evidence, by way of confession or otherwise, which supplements that of a single witness. The requirement of support in section 13 only goes to the issue of falsity and not the proving that the person charged knew that what he was saying was false: R v. O'Connor [1980] Crim. L.R.43, C.A. The section means that falsity must be proved either by two witnesses, or by one witness and something else in addition: R v. Threlfall 10 Cr. App. R. 112 at 117 (Archbold 2006 paras 28 - 165 and 28 - 166).

[94] I accept Miss Renee's submission that DPP v. Kilbourne 57 Cr. App. R. 381 andCooper v. The State [1990] 43 WIR 400 cited by Counsel for the appellant are not relevant and that Hamid [1979] 69 Cr. App. R. 324 also cited by Counsel for the appellant is easily distinguished from this case because in that case the judge had made no mention of s. 13 in his summation.

[95] In the present case, (a) there were 3 prosecution witnesses who testified as to the falsity of the statement; (b) the appellant admitted that cocaine could be identified using the tests in the protocol and he was supported by Mrs. Greig who testified on his behalf; and (c) at p. 224 of the record the judge read section 13 of the Perjury Act to the jury and clearly told them what evidence was capable of satisfying that section and again at p. 250 immediately before the jury retired he reminded them of s. 13 (see para [121] below).

[96] A direction in terms of paragraph (c) of ground 1 would not have advanced the case because the appellant said in the course of his evidence that they were confirmatory tests at the time and Mrs. Greig, the appellant's witness, said that the presence of cocaine could have been confirmed by the tests used in the laboratory at that time. Also there was never any suggestion at the trial, by or on behalf of the appellant that his former colleagues had any interest to serve; and unlike The State v. Persaud et al [1976] 24 WIR 97 they could not be said to be accomplices. Similarly in Hamid, the Hamids had been involved in a dispute with their tenants and as such had an interest to serve.

[97] There is no merit in this ground.

Ground 2

[98] This ground is in two parts:

Counsel contended that (a) The learned trial judge's definition of "wilful" at pp. 223 and 224 of the record and his directions on "intention" generally and with reference to "wilful" at p. 226 were both inadequate and unhelpful and in effect misdefined the mens rea relevant in the case; and (b) Even though materiality was a matter of law/fact for the judge, he nevertheless failed to define the term and direct himself on this requirement in a rational and transparent manner. (c) Resulting from the foregoing, the appellant was deprived of correct and open instructions on fundamental principles which had the effect of making his trial unfair and the decision unsafe.

(a)(i) Wilful

[99] At p. 222 of the record the judge told the jury that the prosecution had to prove that "the accused made a statement wilfully, that is to say, deliberately and not inadvertently or by mistake". He also referred to the dictionary meanings of 'wilful' which include 'intentional' and 'conscious'. At p. 250 immediately before the jury retired, the judge reminded them that they could only return a verdict of guilty if they were sure that the statement was made "deliberately and not by mistake". The jury must have retired with those words ringing in their ears. R. v. Millward is authority for the statement that "wilfully" in the Perjury Act means no more than deliberately and not inadvertently or by mistake".

(a)(ii) Intention

[100] At p 226 of the record the learned trial judge gave the jury the following direction:

Intention, like every other ingredient which constitutes the offence with which the accused is charged, must be proved. However, it is not possible to prove the intention of an accused person by positive evidence, and in such a case intention becomes a matter of inference, that is, you must look at all that he does at the time, all that he says at the time, and if you can infer or seek to find out if you can, what his intention was. You must look at what an accused person does and what he says at the critical time, for that may give you a clue as to what his intention was.

Madam Foreman and members of the jury, in this case you should have regard to what I will describe as the critical periods in this case: October 1999 and November 2001. In October 1999, the certificate of Analysis was prepared while evidence was given in the case of Moses, Jean-Marie and Lavine in November, 2001."

[101] Counsel's submission that the judge should have widened 'intention' to include intention within Woolin [2002] EWCA Crim 1768; [1999] 1 Cr. App. R 8 and Nedrick [1986] EWCA Crim 2; [1986] 3 All E.R. 1 is unacceptable. Those cases are irrelevant and inapplicable to a charge of perjury. They dealt with the intention required to satisfy a charge of murder.

(b) Materiality

[102] The second ground of appeal in part related to materiality and claimed that the judge "failed to define the term and direct himself on this requirement in a rational and transparent manner". Under section 3(1) of the Act, one of the ingredients of the offence of perjury is that the false statement must be 'material' in the proceeding in which the statement was made. 'Material' means important or significant: something which matters. However the truth or falsity of the accused's statement need not be crucial to the outcome of the case": Blackstone's Criminal Practice 2006 B14.8. "The question whether a statement on which perjury is assigned was material is a question of law" to be determined by the judge: section 3(5) of the Act. It is the statement, viewed objectively, that must be material, not the materiality of the truth, if told, which is in issue: R. v. Millward (1985) Q.B. 519 CA. In other words, the test for materiality is whether the statement might have affected the outcome of the proceedings, not that it would have done so. The defendant need not know or believe that his statement is material, though he must know of its falsity or not believe in its truth.

[103] At page 223 of the record the judge said to the jury:

"In my judgment, as a matter of law, the statement at issue in this trial, namely the reply given in the proceedings before the Court in 2001, is material…"

[104] In my opinion the trial judge's direction cannot be faulted.

[105] This ground of appeal fails.

Ground 3

[106] Counsel for the appellant contended that (a) the learned trial judge (i) failed to advise the jury how to evaluate expert evidence, and (ii) wrongly rejected the defence's application to treat Mrs. Leslie Sharon Greig as an expert witness; and (b) submitted that the trial judge's refusal to admit Mrs. Greig as an expert witness was wrong in law and prejudicial to the appellant.

[107] With regard to paragraph (a)(i), the trial judge gave the jury the standard direction on expert evidence. The judge told the jury what expert evidence is and how it may assist them in reaching their verdict but that in reaching a verdict the decision is for the jury (pp 225 and 226). I do not think it necessary to set out the judge's direction - it was comprehensive.

[108] The first requirement was for the judge to determine the subject matter upon which the opinion of an expert was necessary. In the South Australian Supreme Court case of The Queen v. Bonython (1984) 38 S.A.S.R. 45 at 46, King CJ stated:

"The general rule is that a witness may give evidence only as to matters observed by him. His opinions are not admissible. One of the recognized exceptions to this rule is that which relates to the opinions of an expert. This exception is confined to subjects which are not, or are not wholly, within the knowledge and experience of ordinary persons: Clarke v. Ryan [1960] HCA 42; (1960) 103 C.L.R. 486. On such subjects a witness may be allowed to express opinions if the witness is shown to possess sufficient knowledge or experience in relation to the subject on which the opinion is sought to render his opinion of assistance to the court."

[109] The forensic scientists from the FSC gave evidence as to the confirmatory tests for cocaine in the manual which formed part of the FSC's protocol.

[110] The second question for the judge's determination was whether Mrs. Greig's was competent to give expert evidence on the issue of the confirmatory tests for cocaine.

[111] The correct approach for a judge to adopt in deciding whether to allow the witness to give evidence as an expert is stated in Bonython at p 46:

"Before allowing a witness to express such [expert] opinions, the judge must be satisfied that the witness possesses the necessary qualifications, whether those qualifications be acquired by study or experience or both…. Before admitting the opinion of a witness into evidence as expert testimony, the judge must consider and decide two questions. The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This first question may be divided into two parts: (a) whether the subject matter of the opinion is such that a person without instruction or experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court. The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court."

[112] In the High Court of Australia Manzies J in Clarke v. Ryan [1960] HCA 42; [1960] 103 C.L.R. 486 at 503 stated the correct approach of an appellate court in reviewing the decision of a trial judge as to competency of a witness to give expert evidence, as follows:

"In truth, the decision of a trial judge that a witness is qualified to give expert evidence is very much a question of fact and it is entitled to all, but no more than, the weight that a court of appeal gives to a finding of fact upon the hearing of an action. In Bratt v. Western Air Lines (1946) 166 A.L.R. 1061 and the annotation thereto at page 1067, what appears to me to be the correct rule is stated as follows: "The qualification and competency of one to give opinion evidence as an expert is primarily in the discretion of the trial court, and the admission or exclusion of such testimony on the ground that the witness was or was not qualified to testify as to his opinion as an expert, will not be reviewed or reversed by the appellate court except where such discretion has been abused, as where there is absolutely no evidence that the witness had the qualifications of an expert and his opinion testimony has been admitted as that of an expert , or where in deciding upon the question of his competency the trial court has proceeded upon erroneous legal standards."

[113] Mrs. Grieg is the holder of a BSc (Honours) Degree, double major, in Biology and Chemistry and a Masters Degree in Forensic Science. She was a student intern with the FSC in 1997 and a professional intern also with the FSC for a nine month period from 1998 to 1999. She did not complete the required period of twelve months internship. There is no doubt that Mrs. Greig is a person who has specialised knowledge based on training, study and experience. However, there was no evidence before the court that by academic study she acquired specialised knowledge in the science of narcotic drug analysis and there is evidence that she did not complete her period of training with the FSC. Also for the period of five years immediately preceding the trial of the appellant Mrs. Greig had done no work in the area of narcotic drug analysis. Whatever specialized knowledge Mrs. Greig had there is no evidence that it was relevant to the issue before the court. Faced with that evidence the learned trial judge found that she was not competent to testify as an expert and learned counsel for the defence agreed. On the evidence that is a finding that the judge was entitled to make.

[114] A similar situation engaged the court's attention in Davie v. The Magistrates of Edinburgh 1953 SC 34. Mr. Sheddan, called as an expert witness, was found by the court to be inadequately qualified and lacking in experience in the effect of blasting on nearby buildings. At p. 42 Lord Russell said, "The opinion expressed by an expert witness in any branch of technical science depends for its effect on, inter alia, his qualifications, skill and experience in that science."

[115] Boyce v. The State of Trinidad and Tobago [2006] 2 WLR 284 can be distinguished from the present case because the doctor in Boyce, though not academically qualified in forensic pathology, had considerable experience having performed 270 autopsies.

[116] This Court should only reverse the learned judge's finding on what was the exercise of a judicial discretion if we are satisfied that the discretion was exercised unjudicially or that the learned judge acted upon some erroneous principle of law (see Clarke v. Ryan para [44] above).

[117] It was submitted for the appellant that having ruled Mrs. Greig incompetent, the learned judge ought not to have received her evidence and that receipt of her evidence was prejudicial to the appellant; and the direction to the jury on that evidence was confusing.

[118] I agree that having found Mrs. Greig incompetent the learned judge ought not have received her evidence.

[119] At p. 247, the learned judge gave the jury the following direction as to how they should treat Mrs. Greig's evidence:

"Mrs. Greig, who also holds a Masters in Forensic Science from George Washington University, had a brief attachment first as a student, then for mine months from July 1988 to March 1999. I could not treat her as an expert witness, because really since 1999, on her evidence, she was not involved in forensic matters.

As a matter of fact, Madam Foreman and members of the jury, her evidence specifically was to me, "since 1999 I was a pharmaceutical representative. Subsequent to that, for the last five and a half years, I have been working at IBM World Trade Corporation. It is true to say that since my attachment in 1999 I have not" …. She said it is correct to say she has not used her scientific qualifications.

It is also of some note, Madam Foreman and members of the jury, that she was not at the centre in October, 1999 with Mr. Sargeant when this matter came up. It is for you, Madam Foreman and members of the jury, to determine what weight you attach to her evidence, since it is not that of an expect in the field."

[120] Mrs. Greig's was the appellant's witness. Her evidence was favourable to him. Even if it was wrongly admitted, it is difficult to see how it prejudiced the appellant's case.

[121] The learned judge clearly put to the jury the issue they had to determine. Immediately before they retired he gave them the following direction:

"You can return a verdict of guilty of perjury against the accused if the evidence makes you feel sure of the following: That the statement he made in response to the question at the trial of Lavine, Jean-Marie and Moses, that "The confirmation test was not done in this particular case? No, because it was not in the last protocol at that time," was made deliberately and not by mistake; (2) that the statement was false; and (3) that he knew it to be false. Moreover, as a matter of law, Madam Foreman and members of the jury, when section 13 of the Perjury Act is taken into account, ironically by way of a confirmatory test, you can only convict if you are satisfied by the evidence of at least two witnesses, that that statement was false. The acceptance of the evidence of only one of the Crown's witnesses means that you must find the accused not guilty. If you are in any doubt about any of the above matters you must likewise find him not guilty.

[122] The only merit in this ground is the judicial error of the admission of Mrs. Greig's testimony. I return to this point in my conclusion.

Ground 4

[123] This ground alleges that the judge erred in law in not upholding the no-case submission.

[124] After some argument by Counsel he indicated that he was not pursuing this ground. I therefore consider it abandoned.

Ground 5

[125] The fifth ground alleges that the judge failed to put the case for the defendant fully.

[126] The case for the appellant was simplistic. At his trial defence counsel sought to establish that because the word "confirmatory" did not appear in the protocol there was no confirmatory test. Before this Court Sir Richard Cheltenham adverted to that when he said that at the trial the defence was resting on the narrow ground that the absence of the word "Confirmatory" from the protocol was conclusive that there was no confirmatory test in the protocol.

[127] At pages 248 and 249 of the record the learned trial judge directed the jury thus:

"The case for the accused man is that he denies committing perjury and he has pleaded not guilty, and I remind you he is presumed innocent, has nothing to prove, and that you must consider what evidence he has given the same way you do all the other evidence. He has no burden to prove anything, and if he is to be found proven guilty, the evidence led by the Crown must prove his guilty. The essence of the accused's case, Madam Foreman and members of the jury, is that as a result of his 1999 Fairfax experience and training, he came to the realization that what he was doing at the centre all the while before was wrong because it did not conform with said scientific principles; that the confirmatory tests were not in the last protocol at the time, and that when he said what he did in court, he was honestly speaking as to his belief and in accordance with sound scientific principles. As he said, I lifted this from his evidence, "when I made that statement we were in the process of developing tests that can work because we had to develop new methods and we had to validate them." He contends he did not commit perjury. He also says that there were no administrative guidelines in place at the centre; things were done ad hoc, and he is unable to account, after this lapse of time. As to the circumstances why the supervisor's signature was not on the Certificate of Analysis.

Madam Foreman and members of the jury, what are the issues in this case? The Crown contends that the manuals, coupled with the training provided the accused, he had to be aware of the confirmatory steps in the manual, but he relied on the tests specified before October 1999 and after 1999, continuing until he left the centre in 2001. On the other hand, the defence contends that nowhere in the literature, namely Exhibit "C", the Manual on Recommended Methods for Testing Cocaine, is there any heading or reference to a confirmation or confirmatory test and that the absence of such a description is fatal to the Crown's case."

[128] Judge put the case for the defence clearly and fully to the jury. There is no merit in this ground.

Ground 6

[129] The sixth ground alleges that the judge should have declared a mistrial and ordered a retrial because of the severe prejudice resulting, in spite of his warning, from Mrs. Corbin's evidence to the effect that investigations after November 2001 found that in at least three cases the appellant had not complied with the administrative protocol which required worksheets to be signed by the appellant's supervisor.

[130] The question of accidental prejudice arose in R v Weaver (1967) 1 All E.R. 277 where at p. 280 Sachs L J said:

"The decision whether or not to discharge the Jury is one for the discretion of the trial Judge on the particular facts, and the Court will not lightly interfere with the exercise of that discretion. When that has been said, it follows, as is repeated time and again, that every case depends on its own facts. As also has been said time and time again, it thus depends on the nature of what has been admitted into evidence and the circumstances in which it has been admitted what, looking at the case as a whole, is the correct course. It is far from being the rule that, in every case, where something of this nature gets into evidence through inadvertence, the jury must be discharged."

[131] "Where the accused is represented by counsel and prejudicial matters are accidentally disclosed it would seem that counsel must take the initiative and apply at trial for the jury to be discharged. If he fails to do so, any appeal is liable to be dismissed, even if the circumstances were such that, had an application for discharge been made, it would probably have been granted (see R v. Wattam [1942] 1 All E.R. 178, in which a police officer gave evidence that he had first seen the accused's face when looking through an album of photographs and the Court of Criminal Appeal held that, even if the reference to the album could be regarded as an irregularity in that the jury might have thought that it was a rogue's gallery of convicted criminals, the appeal must fail because defence counsel had omitted to apply for a retrial). (Blackstone's Criminal Practice 2006 D12.21).

[132] In the present case, shortly after the witness gave that evidence, the judge warned the jury to disregard the statement and he repeated that warning during his summation. At pp. 220 and 221 the judge directed the jury as follows:

"Yesterday, at the beginning of the sitting, I gave you a direction which I now repeat, that you should ignore the reply given by Miss Corbin under re-examination that investigations post November 2001, found that in at least three cases the accused had not complied with the administrative protocol that the worksheet be signed by his supervisor. The reasons why this may have happened are several, such as inadvertence or oversight, so nothing sinister should be drawn from such a statement.

Unless otherwise directed, where one or more inferences can be drawn from a happening, then the inference most favourable to the accused must be the overriding consideration and must be so drawn."

[133] In all the circumstances I consider the warning adequate. I find no merit in this ground.

Ground 7

[134] This ground alleges that the sentence is excessive. The maximum sentence for the offence is seven years in prison. The appellant was a public officer in whom significant public trust was placed. The fate of persons charged with narcotic offences depended considerably on his testimony in court. He breached public trust. In the circumstances I think the sentence was reasonable even taking into account his clean record.

[135] The statement made by the judge during the course of sentencing was unfortunate but the sentence was appropriate.

CONCLUSION AND DISPOSAL

[136] All witnesses, including the appellant and Mrs. Greig acknowledged that the microcrystal test and the TLC test which were set out in the protocols were used as confirmatory tests.

[137] The appellant, however, after his visit to Fairfax decided that those tests were not confirmatory tests and that the UN manuals were written in error.

[138] The appellant's defence was that (a) as the word "confirmatory" did not appear in the protocol there was no confirmatory test; and (b) he had been to Fairfax and received new scientific knowledge that questioned the accuracy of the TLC as a confirmatory test. The TLC seems to have been accepted at that time as a confirmatory test. Support for that is to be found in the case of Richard McIlkenny, Patrick Hill, William Power, John Walker, Robert Gerard Hunter, Hugh Callaghan (The Birmingham six) (1991) 93 Cr App. R 287 in the following sentence at 300: "If his positive results at the police station were due to nitrate contamination from the soap he was using, one would not expect the result to be confirmed by TLC."(emphasis added). Albeit in that case the drug was nitroglycerine.

[139] It was the GCMS that the appellant was trained in at Fairfax and which Mrs. Greig referred to as the "gold standard in the area of forensic science". At p. 295 of the Birmingham six it was said that gas chromatography/mass spectrometry, or GCMS is even more sensitive than TLC and at p. 302 it was said, "Unfortunately, the GCMS equipment used by Dr. Drayton has now been susperseded. Science, as she said in evidence, has moved on in 16 years."

[140] Science and technology move on but that does not make the standards of the past invalid or irrelevant for the period in history in which those standards were current. The test used to identify or confirm cocaine in the year 1906 cannot be called in question because of scientific advancement in the year 2006. That must also be the case in respect of the tests to identify cocaine used at the FSC before the appellant underwent a training course at Fairfax.

[141] It is clear from the evidence of the witnesses, including the appellant and Mrs. Greig that the TLC test and the microcrytal test were in the protocol used at the FSC and that those tests were not a matter of undocumented practice. The appellant admitted that he was trained to use those tests and that they are in the U.N. Manual. Mrs. Greig also admitted the same.

[142] Defence counsel asked whether a confirmatory test was done in the Moses trial. The appellant said categorically that none was done and he volunteered the reason for its not being done: "because it was not in the protocol at that time." In my view the decision which the jury had to make was whether the appellant's denial and his reason were truthful or not. They had to weigh (a) the evidence of Mrs. Corbin, Miss Alleyne and Mr. Sehntwali on the one hand; and (b) on the other hand, the evidence of the appellant and of Mrs. Greig.

[143] It is the jury's duty at the trial to reach a verdict on the evidence before them. There can be no doubt that on the evidence at the trial the case against the appellant was convincing. On the other hand the appellant's evidence was inconsistent and contradictory and both the appellant and Mrs. Greig made vital admissions. By their verdict the jury clearly demonstrated that they preferred the evidence for the prosecution.

[144] I am satisfied that there was no substantial miscarriage of justice and that the jury, notwithstanding the error of the trial judge, would inevitably have come to the same conclusion: Anderson v. R [1972] AC 100. In my opinion this is a proper case for the application of the proviso to section 4(2) of the Criminal Appeal Act. In the circumstances I would therefore dismiss this appeal and affirm the conviction and sentence.

Justice of Appeal